Breaking the Conspiracy of Silence: Europe and Extraordinary Rendition

An Amnesty International Report released this week calls for a break in the conspiracy of silence surrounding Europe's complicity in CIA-driven torture and extraordinary renditions. The European Court's pointed questions to the Macedonian government in Khaled El-Masri's case may well prove to be the catalyst for such a break.

The facts of Khaled El-Masri's case are no secret. According to the application filed by the Open Society Justice Initiative on El-Masri's behalf, he is the innocent victim of a joint U.S.-Macedonian rendition operation. A German national, El-Masri was seized by Macedonian security officers in December 2003 while on holiday. He was detained incommunicado and abused in Macedonian custody for 23 days, after which he was handcuffed, blindfolded, driven to the airport, and handed over to the CIA. After subjecting him to further abuse, the CIA flew him to Kabul and locked him up in a secret prison known as the "Salt Pit" where he was slammed into walls, kicked, beaten, and subjected to other forms of abuse. Held at the Salt Pit for four months, El-Masri was never charged, brought before a judge, or given access to his family or German government representatives. On May 24, 2004, he was flown, blindfolded, ear-muffed, and chained to his seat, to Albania, where he was dumped on the side of the road without explanation.

The United States government has insisted that Khaled El-Masri's case implicates "state secrets" and obtained dismissal of his U.S. lawsuit without even responding to the allegations. In 2007, the U.S. Supreme Court declined to review that dismissal.

In 2009, the Open Society Justice Initiative filed an application on El-Masri's behalf against the Macedonian government before the European Court of Human Rights. In October 2010, the European Court communicated the case to the Macedonian government. This is a significant development, as only about ten percent of all cases brought before the European Court get communicated. Perhaps even more significant is the fact that the European Court has asked the Macedonian government a set of pointed questions, including whether agents of the Macedonian government detained El-Masri and subjected him to torture or cruel inhuman or degrading treatment; whether Macedonian government agents handed him over to a CIA rendition team; whether the Macedonian government was aware that El-Masri faced a real risk of being subjected to torture or cruel inhuman or degrading treatment if transferred to the Salt Pit; and whether Macedonia had conducted an effective official investigation of this case.

Even at this early stage in the proceedings, the European Court's treatment of this case contrasts significantly with the U.S. courts, which effectively held that the U.S. government was not even required to respond to El-Masri's allegations of kidnapping, illegal transfer, and abuse. In this sense, the communication appears, at least at first blush, to offer some hope for the prospects of accountability for European complicity in rendition.

Of course, no one can predict with certainty how the case will ultimately be resolved by the European Court. But it is noteworthy that there is no doctrine in Europe akin to the extreme interpretation of the state secrets doctrine that ultimately denied El-Masri his day in court in the U.S. Indeed, prevailing European Court jurisprudence has recognized that the right to an effective remedy cannot be eviscerated by the blanket invocation of national security imperatives by the state.

To date, the Macedonian government has consistently denied its involvement in the CIA's extraordinary rendition program, as have numerous other European countries known to have been similarly complicit. Now that the European Court has engaged in El-Masri's case, however, the dominoes may well start to fall.